Texas Prosecutor, January-February 2019

Function over form in charging-instrument law

What makes a chair a chair? Is it the form? It has four has legs, a seating surface, and a back. Or is it the function? Is it merely anything that you sit on? What if you sit on a pile of sticks? Is that a chair?
    For nearly a century and a half, Texas appellate courts have wrestled with a similar metaphysical question: What makes an indictment an indictment? The Court of Criminal Appeals’s most recent offering, Jenkins v. State,1 continues the court’s trend of focusing on function, rather than form, which allows increasingly defective documents to count as indictments. In chair terms: A defendant is entitled to a chair with four legs, a seating surface, and a back, but if he doesn’t complain prior to trial about sitting on a pile of sticks, we’ll call it a chair.
    It was not always this way. From 1876 until 1985, Texas courts focused on the form of an indictment. Any serious deviation in form would result in an indictment being declared not an indictment. Omit an element? Not an indictment.2 Fail to name a complainant? Not an indictment.3 Fail to allege the acts that constituted recklessness? Not an indictment.4 And the consequences of an indictment failing to be a real indictment were severe: A defendant could raise a complaint for the first time on appeal, when there was no chance to fix the indictment, and the appellate court would hold the indictment “fundamentally defective,” hold that the trial court never acquired jurisdiction over the case, and declare the conviction void.
    This created a perverse incentive for defense attorneys to not raise trial court objections. If they objected at trial, the trial court could just fix the indictment, which is not the sort of relief most defendants want. But if counsel waited to raise the matter for the first time on appeal, he could get everything overturned. “Untold thousands of judgments were reversed or set aside for pleading errors which had not been pointed out to the trial court.”5
    Fed up with this ridiculous state of affairs, in 1985 the people of Texas amended the state constitution to clarify that any written instrument presented by a grand jury to a court charging “a person” with “an offense” was an indictment. Defendants could still complain, pretrial, about any defects in the indictment, but absent a trial objection, appellate courts stopped throwing out convictions based on pleading errors, because even defective indictments conferred jurisdiction on the trial court.6

Charging ‘a person’
Was there anything left that would render an indictment so fundamentally defective as to not be an indictment? In 1995, in Cook v. State,7 the Court held there was: failure to name the defendant in the indictment. Absent a name, the Court held, the indictment did not charge “a person.”
    To be fair, an indictment that doesn’t name a defendant sounds pretty bad. But on the other hand, the defendant seems to have known he was charged. He showed up to trial and entered a plea. If a defendant were actually unaware he was the subject of prosecution, or if a trial court was unaware of who it was supposed to try, you’d expect someone to mention that before trial.
    Cook remained the baseline of when an indictment was not really an indictment, but on other fronts the functionalists on the Court of Criminal Appeals made headway against old-style formalism. In Teal v. State,8 the indictment omitted the element that turned a misdemeanor into a felony. The court of appeals held that, even though the defendant didn’t object in the trial court, the omission of the aggravating element meant the district court never acquired jurisdiction. On discretionary review, the Court of Criminal Appeals reversed and held that because the offense could be a felony, the fact that the indictment was filed in a district court adequately notified the defendant it was a felony; thus, the indictment was sufficient to vest the district court with jurisdiction.
    The Teal Court’s decision to take into account something other than bare terms of the formal part of the indictment was a big step toward functionalism. The court took another step in that direction two years later in Kirkpatrick v. State.9 There, the formal part of the indictment omitted an element that made a misdemeanor into a felony, but the Court of Criminal Appeals considered the caption at the top of the indictment—which said the case was a felony and cited to a section of the Penal Code dealing with a felony offense—and held that the indictment vested the district court with jurisdiction.
    Which brings us to Jenkins. Jenkins was indicted for continuous trafficking of persons. The State seems to have gotten the indictment for this complicated charge correct except it omitted Jenkins’s name from the formal part of the indictment. Rather than complaining about this pretrial, when it could have been fixed easily, Jenkins waited until the second day of trial and moved to dismiss on the basis that the indictment was fundamentally defective. The trial court denied this motion. After conviction, Jenkins appealed.
    On appeal the State pointed out that, while the formal part of the indictment charged merely “the defendant,” the caption at the top of the indictment began: “Defendant: Deondre J. Jenkins,” followed by, apparently, Jenkins’s home address. The State argued that, under Kirkpatrick, the court should consider the caption in determining if the indictment charged a person.
    The Fourth Court rejected this argument.10 The Fourth Court believed the Court of Criminal Appeals had established different standards for what it meant to charge “a person” and what it meant to charge “an offense.” According to the Fourth Court, cases such as Teal and Kirkpatrick established a liberal standard for what might constitute an “offense,” but Cook still established a strict standard for what it meant to charge “a person.” Citing to a treatise and a 1935 case (and its progeny) holding that a caption was not part of an indictment,11 the Fourth Court held Jenkins’s indictment was fundamentally defective and overturned the conviction.
    The Court of Criminal Appeals granted review and determined that the formalism of Cook had been implicitly disavowed by the functionalism of Teal and Kirkpatrick.12 Writing for an eight-judge majority, Judge Richardson held that the import of Teal and Kirkpatrick was that appellate courts should look at the indictment “as a whole.” In Teal, the indictment was “certainly defective,” but the court had held that “as a whole” it vested the district court with jurisdiction. In Kirkpatrick, the court had further clarified that the “whole” of the indictment included the caption. If one considered the caption, which named Jenkins and gave his home address, it was plain that the indictment “as a whole” charged “a person” with the offense.
    The Court of Criminal Appeals addressed the Fourth Court’s conclusion that there was a “liberal” standard for determining if the indictment charged an offense and a “strict” standard for determining if it charged a person. This was a misreading of the caselaw due to the simple fact that the Court of Criminal Appeals had not been called upon to address the “person” requirement since Cook. Although Jenkins’s indictment was defective and subject to a pretrial objection, the indictment as a whole, including the caption, sufficiently charged a person with an offense; therefore, the trial court had jurisdiction to try the case.
    There were two concurrences. While both are interesting, they are of little practical value. Presiding Judge Keller concurred, without joining the opinion of the Court, because she disagreed with the Court’s description of the holding in Cook. Judge Yeary concurred, while joining the opinion of the Court, to disagree with the Court’s characterization that the indictment “did not ‘contain the name of the accused.’”13

Going forward
Jenkins marks a major step in the Court’s move toward functionalism in its charging instrument jurisprudence. But make no mistake, Jenkins is not an endorsement of defective indictments. A defendant who raises a valid pretrial objection to an indictment is entitled to have it corrected.14 The point is to force these matters to be litigated pretrial, where the errors can be fixed, instead of allowing a defendant to lay behind the log and gain an appellate reversal for an error that did not functionally impact his rights.
    Of course, no one intentionally omits the defendant’s name from an indictment. As bad as any indictment looks in the caselaw, it is worth remembering it was filed by a prosecutor who tried to do right. Jenkins—which continues the revolution started by the 1985 constitutional amendments—serves to focus the criminal law of this state on the rights of defendants rather than the formal errors of prosecutors.

Endnotes

1  ___ S.W.3d ___, No. PD-0086-18, 2018 WL 6332219 (Tex. Crim. App. Dec. 5, 2018).

2   White v. State, 1 Tex.App. 211, 215 (1876).

3  Ex parte Munoz, 657 S.W.2d 105, 106 (Tex. Crim. App. 1983).

4  Gengnagel v. State, 748 S.W.2d 227, 229 (Tex. Crim. App. 1988).

5  Duron v. State, 956 S.W.2d 547, 554 (Tex. Crim. App. 1997) (Womack, J., concurring).

6  See Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990) (holding indictment not fundamentally defective where it failed to allege acts constituting recklessness).

7   902 S.W.2d 471 (Tex. Crim. App. 1995).

8   230 S.W.3d 172 (Tex. Crim. App. 2007).

9   279 S.W.3d 324 (Tex. Crim. App. 2009).

10  Jenkins v. State, 537 S.W.3d 696 (Tex. App.—San Antonio 2017).

11  Id. at 704-05 (citing Stansbury v. State, 82 S.W.2d 962 (Tex. Crim. App. 1935)). Ironically, the holding in Stansbury was the court’s effort to escape its own formalism. The defendant in that case complained of a defect in the caption of the indictment. Had the court of that time not been so bound to formal requirements, it would not have been required to address this point.

12   Jenkins, 2018 WL 6332219 at *1.

13   Id. at *8 (Yeary, J., concurring).

14  As a practical matter, will any defendant ever file an objection to an indictment that omitted his name if the only relief is to have his name added? Perhaps Navin R. Johnson—the hero of The Jerk, who so desired to see his name in print—but probably few others.